Outside the Beltway

Trump Reportedly Will Pardon American Servicemen Convicted Of War Crimes

President Trump is reportedly planning to pardon several American servicemen convicted of war crimes, an action that would be an insult to everyone who has ever worn an American uniform.

Doug Mataconis · Monday, May 20, 2019 · 15 comments

Over the weekend, The New York Times reported that President Trump is reportedly planning to pardon several American soldiers who were convicted of war crimes committed during their service in Afghanistan and Iraq:

President Trump has indicated that he is considering pardons for several American military members accused or convicted of war crimes, including high-profile cases of murder, attempted murder and desecration of a corpse, according to two United States officials.

The officials said that the Trump administration had made expedited requests this week for paperwork needed to pardon the troops on or around Memorial Day.

One request is for Special Operations Chief Edward Gallagher of the Navy SEALs, who is scheduled to stand trial in the coming weeks on charges of shooting unarmed civilians and killing an enemy captive with a knife while deployed in Iraq.

The others are believed to include the case of a former Blackwater security contractor recently found guilty in the deadly 2007 shooting of dozens of unarmed Iraqis; the case of Maj. Mathew L. Golsteyn, the Army Green Beret accused of killing an unarmed Afghan in 2010; and the case of a group of Marine Corps snipers charged with urinating on the corpses of dead Taliban fighters.

The officials, who spoke on condition of anonymity because they were not authorized to speak publicly, said they had not seen a complete list, and did not know if other service members were included in the request for pardon paperwork.

The White House sent requests on Friday to the Justice Department’s Office of the Pardon Attorney, which alerted the military branches, according to one senior military official. Pardon files include background information and details on criminal charges, and in many cases include letters describing how the person in question has made amends.

The official said while assembling pardon files typically takes months, the Justice Department stressed that all files would have to be complete before Memorial Day weekend, because the President planned to pardon the men then. A second United States official confirmed the request concerning Chief Gallagher.

The military branches referred questions to the Justice Department, which declined to comment on the matter.

Mr. Trump has often bypassed traditional channels in granting pardons and wielded his power freely, sometimes in politically charged cases that resonate with him personally, such as the conviction of the former Arizona sheriff Joe Arpaio. Earlier this month, the president pardoned former Army First Lt. Michael Behenna, who had been convicted of killing an Iraqi during an interrogation in 2008.

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Long ago, presidents wielded clemency power directly, Ms. Love said, but that changed at the end of the Civil War when President Lincoln delegated review of clemency requests to his attorney general. Since then, cases have generally been vetted by Justice Department lawyers before being sent to the president.

President Trump has upended that practice, often issuing pardons with little or no notice to the Justice Department, she said, adding that the fact the department is requesting files on men like Chief Gallagher at all suggests that Attorney General William P. Barr is trying to re-exert some authority over the process.

Process aside, she said that pardoning the men would be an abrupt departure from the past.

“Presidents use pardons to send messages. They recognize when a process wasn’t just or when punishments were too extreme, like for some nonviolent drug cases,” she said. “If this president is planning to pardon a bunch of people charged with war crimes, he will use the pardon power to send a far darker message.”

Shay Khatriti argues that such pardons would harm both the military and America’s national interests:

The former American servicemen convicted of war crimes were found to have disobeyed legal orders given by their commanders. Trump’s pardon is a rebuke to those legal orders. It places the commander in chief in the position of telling that soldiers lower in the chain of command that maybe they can do whatever they like. For the vast majority of our soldiers, sailors, airnmen, marines, and guardsman—who serve with honor and integrity—Trump’s pardons undermines and insults their righteous service. And in the long run, this can only sow distrust of civilian leadership within our military.

Then there is society at large. In our representative democracy, it is incredibly difficult to win a war without the support of the American public. Again: War is a political act. So within the context of liberal democracy, war can be viewed as an expression of public will. If the public does not support a war, then the war cannot be prosecuted successfully.

When you understand war in that way, you see why public support for the military itself is a key part of our national interest: If the public distrusts or disrespects the nation’s armed forces, then it will be harder to sustain the will for military operations in the future. A country which lacks the will to fight is weak. And weakness is a provocation.

Having the commander in chief condone war crimes will almost certainly lead to diminishing respect for the military by the public at large. And in the long run, this becomes dangerous.

Which brings us to another problem: Another element of the trinity is the relationships of the military with the governments and the societies that host it abroad. The easiest phase of a war for the United States military is overthrowing a hostile government, as seen in Iraq and Afghanistan. The hard part is providing security and postwar stabilization. The Surge in Iraq is a good example of how a military that provides protection and comfort for native civilians and is seen as a moral force will be welcomed. And this welcoming attitude makes it easier to obtain our national objectives. A military that is seen as immoral will get no such welcome. If you want a stark example of this, consider the difference between how the Americans and the Soviets were greeted after liberating Europeans from the Nazis.

And then there is the question of alliances.

Whatever one thinks about the military expenditures of NATO member nations, the truth is that since the end of World War II, America’s allies have been assisting us in our wars, not the other way around. There is no reason to believe that this practice will not continue far into the future. And it is easier to secure such help if the civilian populations of allied countries respect the honor and integrity of the U.S. military. If the populations of, say, Great Britain, or France, come to view America’s military as an organization which does not heed the laws of war, it will make it harder for their leadership and people to support us, even if it is in their national interest.

Max Boot voices similar objections in The Washington Post:

In 2016, President Trump ran on a war crimes platform. He vowed: “I would bring back waterboarding. And I would bring back a hell of a lot worse than waterboarding.” (Japanese soldiers were convicted after World War II in a war crimes tribunal for waterboarding American and Allied prisoners.) He also promised to “take out” the families of terrorists and approvingly recounted a false story about Gen. John J. Pershing executing 49 Muslim rebels in the Philippines, employing bullets dipped in pig fat.

These blood-curdling threats from an armchair general who skipped out on the Vietnam War were very much at odds with the ethos of Trump’s first secretary of defense, retired Marine Gen. Jim Mattis, who had exhorted his Marines at the start of the Iraq War: “Engage your brain before you engage your weapon. … Carry out your mission and keep your honor clean.” Mattis dissuaded Trump from issuing an unlawful order to torture terrorists, Trump said, by telling him: “I’ve always found, give me a pack of cigarettes and a couple of beers and I do better with that than I do with torture.”

But this turned out to be only a temporary reprieve. Just as no amount of evidence can convince Trump that other countries don’t pay tariffs (American consumers do), so no amount of evidence can convince him that brutalizing prisoners and civilians is not a good idea. He said in 2017 that he was still “absolutely” an advocate of waterboarding but was deferring to Mattis.

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Having no honor of his own, Trump doesn’t understand the importance of Mattis’s injunction to keep one’s honor clean — to maintain the thin line that separates professional, disciplined soldiers from the Mongol hordes of the 13th century or the German SS. Trump is telling the troops: Don’t listen to your superiors. Ignore the rules of engagement. Feel free to commit atrocities in the expectation of a presidential pardon.

There is no more corrosive message a commander in chief could send, which is why so many veterans who served honorably are so appalled by what Trump is doing. If Congress had any honor of its own, Trump’s incitement of unlawful behavior by the troops under his command would be yet another count in the articles of impeachment against him.

All of these objections are well-founded, and any other President would likely cite them as reasons to deny pardons under these conditions. Pardoning men who have been convicted of war crimes while wearing an American uniform sends precisely the wrong message to the world. To our adversaries, it sends the message that our rhetoric about a commitment to the Rule of Law and justice are mere words without any meaning. It sends the same message to the general population around the world who may have once looked to the United States as a beacon of human rights and justice in a grim world where the violation of rights and the commission of what amount to war crimes is a common occurrence. Pardoning men who have been convicted of war crimes sends the message that these are mere words, and makes it far more difficult for the United States to criticize any other nation that lets its military get away with similar actions.

Khatiri’s final points, regarding the impact that a decision like this might have on nations currently hosting American troops, or that might be asked to do so in the future, and on our alliances generally is perhaps the most important. There have already been situations over the years regarding the treatment of Americans who commit crimes in allied nations hosting American troops, most notably in Japan where a case involving a U.S. Navy sailor and two Marines stationed on Okinawa where charged with raping a 12-year-old female civilian. The incident itself led to widespread protests even though the servicemen were tried and convicted in a Japanese court pursuant to the agreement between the U.S. and Japan. While an incident such as that would not be within the power of a U.S. President to pardon, pardoning these war criminals would potentially send a message to our allies that wrongdoing by American forces may be seen as excusable by the civilians in Washington in charge of the military.

Of course, it’s clear that these types of concerns don’t matter to President Trump. He has abandoned even the pretense of a foreign policy based on the promotion of human right and has looked the other way as allegations have been leveled against nations such as Russia, Egypt, Saudi Arabia, China, North Korea, and The Philippines. Additionally, the fact that pardons such as this could damage our alliances doesn’t matter to him either given the fact that he has done everything he can to drive a wedge between America and our closest allies, as I have documented here, here, and here among other places.

From Trump’s point of view, it’s likely that he sees the possibility of pardoning these servicemen as yet another way to pander to the hyper patriotism of his base, a base that likely doesn’t care that these men committed serious crimes while wearing the uniform of the United States. This is perhaps best revealed by the fact that he is apparently planning to take this action to coincide with the upcoming Memorial Day weekend. In reality, of course, what he proposes to do sullies the reputation not only of the men and women who currently serve in America’s military but those who gave up their lives for their nation in wars dating back to the American Revolution. These pardons would be a slap in their face from a man who didn’t even have the courage to serve when his fellow Americans were overseas dying in war.